Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures. The prisoner, however, may be told to manipulate some part of the body. Some difference of emphasis among the five Justices in the majority made it appear that the decision might be more limited than at first glance.

The ruling, it appeared, did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility. Two Justices wrote separately in an effort to stress that aspect of the ruling, and their votes were essential to the 5-4 result.

The decision was a clear defeat for challengers to strip searches as a general policy. The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs. The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.

The ruling also was a personal defeat for a Burlington County, N.J., man, Albert W. Florence, who was subjected to strip searches at two county jails over a six-day period of confinement after he had been arrested while driving on a state highway, based upon an out-of-date warrant. The warrant was for failure to pay a fine, but he had actually paid the fine; court records had not been updated. Florence has contended in public comments that he believed he had been targeted because he was a black man driving an expensive car. After a week in jail, he was released, and no charges were pursued against him.

As if somehow to help justify its ruling against his challenge to the strip searches, the Court’s main opinion by Justice Anthony M. Kennedy opened with a description of Florence’s earlier run-in with police, seven years before the arrest that led to the strip searches. He had been arrested after fleeing from police, and was charged with obstruction of justice and use of a deadly weapon. He had pleaded guilty to less serious offenses, had paid part of the fine, but had fallen behind in his payments. That, and a failure to appear at a court hearing about the fine, led to the issuance of an arrest warrant. He had paid the remainder of the fine a week later, but the warrant remained open in computer files.

Although the Kennedy opinion would later say that police need not make a strip search policy depend upon an arrested individual’s prior history in crime, the inclusion of the background material about Florence appeared to be aimed at showing that police could not know the character of any individual they had brought in, and thus needed a policy applying to all to ensure that no threat would enter the facility with that prisoner.

The main opinion noted that the jail officials involved in this case had asked the Court not to write constitutional rules that would require them to forgo a strip search unless they had reason to do so based on an individual’s behavior, the suspected crime for which that person been arrested, the person’s criminal record, or “other factors.” Justice Kennedy wrote: “They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population of their facilities.”

Although restrictions on such a search policy suggested by Florence and his supporters in the case would protect the privacy of arrested individuals, Kennedy said, that would be “at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.”

The main opinion by Justice Kennedy was supported in full by Chief Justice John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr. Justice Clarence Thomas alone noted that he would not join the part (Part IV) of the Kennedy opinion which suggested that the decision did not consider what types of searches would be constitutional if a detainee was held at a jail or prison apart from other prisoners. When an arrestee is not mingling with others, that part of the opinion said, there may be less need for a full strip search of the kind otherwise allowed. Justice Thomas apparently did not want to leave that option open for a future challenge.

Both the Chief Justice and Justice Alito wrote separate concurring opinions. While joining the Kennedy version in full, each sought to put particular stress on how narrow they thought the ruling actually was.

Justice Stephen G. Breyer wrote for the four dissenters — himself and Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. The dissenting opinion argued that a strip search of the kind at issue in the case should not be allowed constitutionally for an individual who had been arrested for “a minor offense that does not involve drugs or violence — say a traffic offense, a regulatory offense, or any other such misdemeanor.”

“A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” Breyer wrote. The “invasion of personal rights” at issue in this case, the dissenters argued, “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.”

Much of the Kennedy opinion for the majority is devoted to the arguments of jail and prison officials about the need for a “thorough search” of everyone as a standard and routine part of the facility’s “intake process.” It was clear that the majority had taken such claims as well established, especially as to the risks of introducing weapons or drugs into the facility, bringing in “lice or contagious diseases,” and entry into the facility of gang members. Sympathetically, Justice Kennedy wrote: “It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places.”

“The difficulties of operating a detention center must not be underestimated by the courts,” the opinion said.

The ruling contradicts decisions of several federal appeals courts that imposed limits on strip searches for those arrested for minor offenses, but Justice Kennedy said that the more recent trend among lower courts was to give police more discretion about using this type of inspection of new arrivals at jails or prisons.

The case was among the earliest argued in the Term that had not yet been decided; it was heard on Oct. 15. It was unclear, from the texts of the four opinions in the case, why it had taken almost six months to decide. One possible explanation is that the Court had circulated a decision that would have gone much further to embrace a general policy of strip searches, but the majority in favor did not hold firm. The separate opinions issued by the Chief Justice and Justice Alito, insisting that the ruling not be sweeping in scope, may well have led to the insertion of Part IV of the Kennedy opinion leaving open the chance to challenge an across-the-board strip search policy in the case of individuals arrested for minor offenses.

Justice Alito, with apparent support from the Chief Justice, suggested that a general search policy might not always be reasonable under the Constitution’s Fourth Amendment. “The Court,” Alito wrote, “does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.

If a person is taken in on a minor offense, and is likely to be released promptly on their own or for a small bail sum, putting them in the general jail population with an associated strip search “may not be reasonable, particularly if an alternative procedure is feasible,” Alito wrote. He then noted that the Federal Bureau of Prisons and some local jails appear to segregate those being held only temporarily, if they are minor offenders. His suggestion implied that jail officials around the country might well want to adopt such a policy, to avoid having a general strip search policy partly nullified in a future case.

Because the votes of Alito and Roberts were necessary to make up the majority, it might well be that the Alito opinion will serve as the controlling opinion on that point. buttressed by the fact that Justice Kennedy’s Part IV remarks left the issue open.

[Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents petitioner Albert Florence. The author of this post, however, operates independently of the law firm.]

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